J-S77031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.G., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: J.C.-R., FATHER

No. 814 MDA 2016

Appeal from the Order Entered April 26, 2016

in the Court of Common Pleas of Lancaster County

Juvenile Division at No.: CP-36-DP-0000181-2015

IN THE INTEREST OF: J.C., A MINOR IN THE SUPERIOR COURT OF

PENNSYLVANIA

APPEAL OF: J.C.-R., FATHER

No. 815 MDA 2016

Appeal from the Order Entered April 26, 2016

in the Court of Common Pleas of Lancaster County

Juvenile Division at No.: CP-36-DP-0000180-2015

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2017

J.C.-R. (Appellant) appeals from the April 26, 2016 orders of the Court 

of Common Pleas of Lancaster County, Juvenile Division, in case numbers 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-S77031-16

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181-2015 and 180-2015.1 In its order at case number 181-2015, the court 

adjudicated M.G. (born in March of 1999) dependent, and made a finding 

that M.G. was the victim of abuse perpetrated by Appellant. In case number 

180-2015, the court adjudicated J.C. (born in August of 2015) not

dependent, but found aggravated circumstances as to J.C. and against 

Appellant. We affirm the order in case number 181-2015 as to M.G., and 

vacate in part and remand the order in case number 180-2015 as to J.C. 

Lancaster County Children and Youth Social Service Agency (the 

Agency) most recently became involved with the subject family on May 15, 

2015, as a result of the pregnancy of sixteen-year-old M.G. and allegations 

that she was impregnated by her step-father, Appellant. Other reports were 

thereafter received regarding an alleged sexual relationship between M.G. 

and Appellant. In August of 2015, M.G. gave birth to J.C., of whom, as 

confirmed by genetic testing in November 2015, Appellant is the biological 

father. M.G. and Appellant denied a sexual relationship, with M.G. first 

claiming that she became pregnant by a peer named “Giggles,” and then 

asserting that she inseminated herself through insertion of a condom used 

by Appellant. 

____________________________________________

1 The orders are dated April 20, 2016, but are time-stamped April 26, 2016. 

We will use the time-stamped date.
J-S77031-16

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The Agency filed petitions for dependency on August 26, 2015. On 

November 24, 2015, after completion of genetic testing, the Agency filed an 

amended petition requesting a finding of abuse as to M.G., as perpetrated by 

Appellant, as well as a motion for aggravated circumstances as to J.C., 

against Appellant. Because the trial court aptly summarized the events that 

led the Agency to file these petitions, and related factual history, in its 

opinion entered June 17, 2016, we direct the reader to that opinion for 

further recitation and detail as to the facts of this case. (See Trial Court 

Opinion, 6/17/16, at 4-12).

The trial court held hearings on December 3, 2015, January 27, 2016, 

and April 20, 2016. In support of its petitions, the Agency presented the 

testimony of Sonja Stebbins, Lancaster City Police Lieutenant Detective; 

Ashley Himes, Agency caseworker; M.G.; C.C.-R., M.G.’s mother and J.C.’s 

maternal grandmother; Julie Stover, nurse practitioner, as an expert in 

reproduction; Aubrey Bond, Agency caseworker; and Dr. Robert Filer, as an 

expert in fertility and related endocrinology. In its April 26, 2016 order in 

case number 181-2015, the court adjudicated M.G. dependent, and found 

that she was the victim of abuse perpetrated by Appellant. By separate 

order entered that day in case number 180-2015, the court adjudicated J.C. 

not dependent, and found that aggravated circumstances existed as to him, 
J-S77031-16

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and against Appellant.2 On May 18, 2016, Appellant, through appointed 

counsel, filed timely notices of appeal, along with concise statements of 

errors complained of on appeal. See Pa.R.A.P. 1925(a)(2)(i), (b). The trial 

court filed an opinion on June 17, 2016. See Pa.R.A.P. 1925(a)(2)(ii). This 

Court consolidated the appeals sua sponte on June 24, 2016. 

On appeal, Appellant raises the following issues for our review:

A. The [c]ourt erred in finding [Appellant] abused M.G.

B. The [c]ourt erred in the Order of Adjudication finding aggravated 

circumstances existed as to J.C.[]

(Appellant’s Brief, at 9).

Our standard of review for dependency cases is as follows:

[T]he standard of review in dependency cases requires an 

appellate court to accept the findings of fact and credibility 

determinations of the trial court if they are supported by the 

record, but does not require the appellate court to accept the 

lower court’s inferences or conclusions of law. Accordingly, we 

review for an abuse of discretion.

In re R.J.T., 9 A.3d 1179, 1190 (Pa. 2010) (citation omitted). “The trial 

court is free to believe all, part, or none of the evidence presented, and is 

likewise free to make all credibility determinations and resolve conflicts in 

the evidence.” In re M.G., 855 A.2d 68, 73-74 (Pa. Super. 2004) (citation 

omitted).

____________________________________________

2 The trial court additionally issued a third order, a permanency review 

order, on this date, in which it found aggravated circumstances against 

Appellant as to M.G. Appellant, however, does not challenge this order 

and/or raise this issue on appeal. (See Appellant’s Brief, at 9, 14-20).
J-S77031-16

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To adjudicate a child dependent, a trial court must determine, by clear 

and convincing evidence, that the child:

is without proper parental care or control, 

subsistence, education as required by law, or other 

care or control necessary for his physical, mental, or 

emotional health, or morals. A determination that 

there is a lack of proper parental care or control may 

be based upon evidence of conduct by the parent, 

guardian or other custodian that places the health, 

safety or welfare of the child at risk[.] . . .

42 Pa.C.S.A. § 6302. 

In the case sub judice, we have examined the opinion entered by the 

trial court on June 17, 2016 in light of the record in this matter and are 

satisfied that the opinion is a complete and correct analysis regarding the 

finding that M.G. was the victim of abuse and Appellant was the perpetrator. 

We, therefore, adopt the concise, thoughtful, and well-written opinion of the 

trial court as dispositive of this issue. (See Trial Ct. Op., at 13-19).

We next address the issue of the court’s finding of aggravated 

circumstances as to J.C. Specifically, in finding that J.C. is not dependent, 

the trial court found that, “under such circumstances as existed as of the 

date of its determination, there was not clear and convincing evidence that 

J.C. was a dependent child.” (Trial Ct. Op., at 21). The court then made a 

finding of aggravated circumstances as to J.C. We are constrained to 

conclude that this was error.

Pursuant to 42 Pa.C.S.A. § 6341:

(c) Finding of dependency.─If the court finds from clear and 

convincing evidence that the child is dependent, the court shall 
J-S77031-16

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proceed immediately or at a postponed hearing . . . to make a 

proper disposition of the case.

(c.1) Aggravated circumstances.─If the county agency or the 

child’s attorney alleges the existence of aggravated 

circumstances and the court determines that the child is 

dependent, the court shall also determine if aggravated 

circumstances exist. If the court finds from clear and convincing 

evidence that aggravated circumstances exist, the court shall 

determine whether or not reasonable efforts to prevent or 

eliminate the need for removing the child from the home or to 

preserve and reunify the family shall be made or continue to be 

made and schedule a hearing as required in section 6351(e)(3) 

(relating to disposition of dependent child).

42 Pa.C.S.A. § 6341(c), (c.1) (emphasis added).3 

In other words, the statute provides that, if the trial court makes a 

finding of dependency, then it shall also determine the existence of 

aggravated circumstances. See id. Instantly, the trial court determined 

____________________________________________

3

“Aggravated circumstances” is defined as “[t]he child or another child of 

the parent has been the victim of physical abuse resulting in serious bodily 

injury, sexual violence or aggravated physical neglect by the parent.” 42 

Pa.C.S.A. § 6302. “Sexual violence” is defined as: 

Rape, indecent contact as defined in 18 Pa.C.S.[A.] § 3101 

(relating to definitions), incest or using, causing, permitting, 

persuading or coercing the child to engage in a prohibited sexual 

act as defined in 18 Pa.C.S.[A.] § 6312(a) (relating to sexual 

abuse of children) or a simulation of a prohibited sexual act for 

the purpose of photographing, videotaping, depicting on 

computer or filming involving the child. 

42 Pa.C.S.A. § 6302. We have held that the doctrine of in loco parentis is 

applicable “for purposes of defining ‘parent’ in the context of ‘aggravated 

circumstances[.]’” In re C.B., 861 A.2d 287, 297 (Pa. Super. 2004), appeal 

denied, 871 A.2d 187 (Pa. 2005).
J-S77031-16

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J.C. was not dependent. Therefore, its inquiry should have ended there. 

Hence, while we are sympathetic to the trial court’s attempt to protect J.C. 

in the future, its finding of aggravated circumstances as to him was in 

contravention of Pennsylvania law, and is therefore a legal nullity. 

Accordingly, we must vacate the court’s order to the extent it found 

aggravating circumstances as to J.C.

Consequently, we affirm the order of the Court of Common Pleas of 

Lancaster County, Juvenile Division, finding M.G. to be the victim of abuse 

perpetrated by Appellant, on the basis of the trial court’s opinion. We vacate 

the order of the trial court to the extent it found the existence of aggravated 

circumstances as to J.C., and remand to the trial court for any further 

proceedings. 

Order as to M.G. affirmed. Order as to J.C. vacated in part and 

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2017
,&irçulatgd 12/20/2016 04:13 PM 

i k... 1 i d t 

`G) 

IN,QSHE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

JUVENILE DIVISION 

cov THE INTEREST OF Term No. CP -36 -DP -180 -2015 

,. _ n FID: 36 -FN -109 -2015 

and 

IN HE ?NTEREST OF Term No. CP -36 -DP -181 -2015 

FID: 36 -FN -110 -2015 

OPINION :SUR APPEAL 

This opinion addresses two snparai.e but related appeals 

Ci! , 1 by LimilmMMOOMOMMOMOMb (hereinafter, "the Appellant ") . The first appeal addresses t:his Court's Order of 

Adjudication -Child Not Dependent in the case of amomplimz (date 

of birth August-. 2015; hereinafter, "J.C. ") wherein the Court 

found that aggravated circumstances had been establis'lect ac, tc the Appellant. 

The second appeal addresses this Court's Order of 

Adjudication and Dispositiol -Chil,.. Dependent in the case of 

411111111M1111116 (date of birth March 11. 1999; hereinafter, "M.G. ") 

Both Orders are dated April 20, 2016. The Order in the J.C. 

case was entered upon the Clerk of Courts' docket on April 22, 

2016. The Order in the M.G. case was entered upon the Clerk of 

Court's docket on April 2', 2016.` 

One opinion is beiw; submitted for both appeals for the following 

reasons: the Court found to be the perpetrator of sexual 

abuse upon which was the basis for the finding of aggravated 

circumstances with regard toOMOMMOMMIN These are the two issues stated in 

the Errors Complained of on Appeal, and the Court's findings as represented in 
The Appellant's Notices of Appeal were timely filed on May 

18, 2016. 

In the M.G. case, the family within the household consists 

of M.G.'s biological mother, (hereinafter, 

"C.C. -R. "), her husband (and M.G.'s stepfather) 

(the Appellant), and her three children: 

Ari, and all of whom are the biological children of 

CIMINBW1(hereinafter "G.G. "), who is C.C. -R.'s former husband 

(but who was and is not a household member). (See the Lancaster 

County Children and Youth Social Service Agency's Petition for 

Temporary Custody.) 

In the J.C. case, the family consists of J.C.'s bic.ulogical 

mother, M.G., J.C.'s biological father - the Appellant, and the 

child, J.C. 

The Appellant, therefore, is stepfather to M.G. and is the 

biological father of J.C. 

Adjudication /Disposition Hearings were held over the course 

of three days and culminated in the Orders under appeal. 

At all of the hearings, C.C. -R. was present and was 

represented by Gina M. Carnes, Esquire, G.G. was present and was 

represented by Catharine I. Roland, Esquire, M.G. was present 

and, in her role as the mother of J.C., M.G. was represented by 

Daniel H. Shertzer, Jr., Esquire. In addition, M.G.'s Guardian 

the two Orders are based upon a single evidentiary record. 

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ad litem, JoAnne Murphy, Esquire, was present. The Appellant was 

present and was represented by Caprice Hicks Bunting, Esquire. 

Finally, J.C.'s Guardian ad litem, Jeffrey S. Shank, Esquire, was 

present; the child J.C. was not present due to his young age. 

At all of the hearings in both cases, David J. Natan, 

Esquire, was present as the solicitor for the Lancaster County 

Children and Youth Social Service Agency (hereinafter, "the 

Agency "). 

The three hearings were held on December 3, 2015, on January 

27, 2016, and on April 20, 2016. 

In the M.G. case, the Appellant complains on appeal that 

this Court erred when it ruled that M.G. is the victim of child 

abuse and that the Appellant is the perpetrator of such abuse. 

In the J.C. case, the Appellant complains on appeal that 

this Court erred when it made a finding of aggravated 

circumstances (as that term is defined in the Juvenile Act) 

against the Appellant. 

The Appellant is the only party to these two cases who has 

sought relief by appeal to the Superior Court. 

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FINDINGS OF FACT 

1. M.G. was born on March 2, 1999. (N.T. 01/27/2016 

at page 5) 

2. M.G. is the mother of J.C. (N.T. 01/27/2016 at page 6) 

3. J.C. was born on August 25, 2015, when M.G. was sixteen 

years of age. (N.T. 01/27/2016 at page 6) 

4. C.C. -R. has been employed as a full -time staff member 

in a medical office from a time prior to when M.G. became 

pregnant and throughout the course of these cases. (N.T. 

01/27/2016 at pages 36 -37 and at page 90) 

5. The Appellant consistently lived as a part of the same 

household as C.C. -R. and M.G. for a period of about ten years 

prior to the inception of these cases. (N.T. 01/27/2016 at page 

41) 

6. M.G. had spent every other weekend with her biological 

father, G.G., but during the couple of years before these cases 

began M.G. did not visit with G.G. (N.T. 01/27/2016 at pages 41- 

42) 

7. M.G. refers to G.G. as her "bio dad ", while she refers 

to the Appellant as "dad" and the Appellant and C.C. -R. 

collectively as her "parents ". (N.T. 01/27/2016 at page 11, page 

18, and, by example, page 8 and page 38) 

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8. During the time period when M.G. became pregnant, the 

Appellant was responsible for supervising M.G. when M.G. was at 

home while C.C. -R. was at work. (N.T. 01/27/2016 at page 41) 

9. The fact that M.G. was pregnant was confirmed when M.G. 

saw a doctor in February 2015. (N.T. 01/27/2016 at page 13) 

l0. After M.G. was seen by a doctor in February of 2015 and 

was told that she was pregnant, M.G. told C.C. -R. and the 

Appellant that she had been impregnated by a fellow high school 

student. (N.T. 01/27/2016 at pages 84 -85) 

11. The Agency received its initial referral in respect to 

M.G. on May 15, 2015. (N.T. 12/03/2015 at page 14) 

12. The referent's allegation was that the Appellant, who 

is M.G.'s stepfather, is the biological father of M.G.'s unborn 

child. (N.T. 12/03/2015 at pages 14 -15) 

13. On June 30, 2015, the Agency received another referral 

that M.G. was engaging in oral sex with the Appellant. However, 

the Agency determined this referral to be unfounded. (N.T. 

12/03/2015 at pages 32 -34) 

14. M.G.'s brother, 1111=11Mgm~ (who had been a household 

member but who had gone to live with his father, G.G., before the 

Agency filed its Petition for Temporary Custody in respect to 

M.G.), was interviewed and reported that he had seen the 

Appellant and M.G. kissing as well as M.G. sleeping in the 

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Appellant's bed when C.C. -R. was sick and sleeping on the couch. 

(N.T. 12/03/15 at page 93) 

15. Initially, during a meeting at the family home on May 

15, 2015, M.G. reported to the Agency caseworker that she got 

pregnant after engaging in sexual intercourse with a fellow high 

school student whom she knew by the name of "Giggles ". M.G. was 

unable to state where she met "Giggles ", what his real name is or 

what he looks like, and she was unable to provide any other 

details about him or about their sexual encounter, including the 

location of the party where they had their alleged sexual 

encounter (or even whether it was at a house or a park) or the 

identity of any of the other persons who were present at the 

party. (N.T. 12/03/2015 at pages 17 -18) 

16. The Agency arranged for M.G. to participate in a forensic interview on May 26, 2015, at the Lancaster Children's 

Alliance. This was the first interview in which M.G. 

participated which was video recorded. (N.T. 12/03/2015 at page 

21) 

17. In all, M.G. participated in three video recorded 

interviews as follows: at the Lancaster Children's Alliance on 

May 26, 2015; with Detective Lieutenant Sonja Stebbins at the 

Lancaster City Bureau of Police on July 6, 2015; and again at the 

Lancaster Children's Alliance on September 8, 2015. (N.T. 

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12/03/2015 at pages 4 -13, Petitioner's Exhibits 1, 2 and 3 dated 

12/03/2015) 

18. At the first interview of M.G. at the Lancaster 

Children's Alliance (on May 26, 2015), M.G. again stated that 

"Giggles" is the father of her then - unborn child. M.G. related 

that she and "Giggles" had engaged in sexual intercourse just 

once (at a party thrown by other high school students), and that 

M.G.'s pregnancy resulted from this, her first and only sexual 

experience for her. (Petitioner's Exhibit 1 admitted 12/03/2015) 

19. During the interim between M.G.'s first Lancaster 

Children's Alliance interview (on May 26, 2015) and M.G.'s 

interview with Detective Lieutenant Stebbins (on July 6, 2015), 

the Agency caseworker and the Appellant engaged in several 

conversations in which the Appellant denied the allegations that 

he sexually abused M.G. (N.T. 12/3/2015 at page 23) 

20. On or about July 5, 2015, which was after M.G. had been 

asked to meet for an interview by Lancaster City Bureau of Police 

Detective Lieutenant Stebbins but before such interview occurred, 

C.C. -R. and the Appellant had a discussion at home where they 

agreed that M.G. must get DNA testing to establish paternity of 

her then unborn child. (N.T. 1/27/2016 at page 86) 

21. M.G. overheard this discussion and reacted by ranting 

and raving for twenty minutes. (N.T. 1/27/2016 at pages 86 and 

111) 

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22. After M.G. calmed down, M.G. told C.C. -R. and the 

Appellant that she had taken their used condom and inseminated 

herself. (N.T. 01/27/2016 at page 86) 

23. M.G. did not tell her story that she had become 

pregnant via self -insemination with a used condom to anyone other 

than C.C. -R. and the Appellant until she provided that 

explanation during her July 6, 2015, interview with Detective 

Lieutenant Stebbins at the Lancaster City Bureau of Police. 

(N.T. 12/03/2015 at page 74) 

24. On July 6, 2015, during the course of her interview by 

Detective Lieutenant Stebbins at the Lancaster City Bureau of 

Police, M.G. stated that she had impregnated herself by inserting 

a condom containing semen into her vagina. According to M.G., 

she overheard her mother and the Appellant having sexual 

intercourse and had retrieved the condom they had used from the 

floor of their bedroom shortly after they finished having sex and 

had left the room. (N.T. 12/03/2015 at page 23) 

25. During the July 6, 2015, interview, M.G. told the 

Detective she cut a hole in the tip of the condom and then 

squeezed its contents into her vagina. (Petitioner's Exhibit 3 

admitted 12/03/2015) 

26. Thereafter, the Agency implemented a safety plan which 

prohibited the Appellant from having any contact with M.G. or 

with Mother's other children. (N.T. 12/03/2015 at page 27) 

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27. On August 27, 2015, which was two days after J.C.'s 

birth, M.G. and J.C. were placed into the physical custody of the 

Agency. (N.T. 12/03/2015 at page 27) 

28. M.G. was interviewed by the Lancaster Children's 

Alliance for a second time on September 8, 2015. During that 

interview, M.G. maintained that she was impregnated by way of her 

self - insemination through inserting a used and discarded condom 

into her vagina. However, M.G.'s precise description of how she 

accomplished this was at variance with the description she gave 

to Detective Lieutenant Stebbins on July 6, 2015, as M.G. now 

claimed that the condom was "halfway open" when she inserted it 

(and made no mention of having cut off the tip and squeezing it). 

(Petitioner's Exhibit 3 admitted 12/03/2015) 

29. Julie Stover, who is a registered nurse practitioner 

employed by Lancaster General Health and by the Lancaster 

Children's Alliance and who has long experience working with 

children and youth who have been victims of sexual abuse, was 

present during the September 8, 2015, interview of M.G. at the 

Lancaster Children's Alliance. (N.T. 01/27/2015 at pages 162- 

167) 

30. Ms. Stover attempted to glean additional details about 

how M.G. became pregnant from M.G. but M.G. shut down and was 

non -responsive. (N.T. 01/27/2015 at pages 185 -186) 

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31. Ms. Stover was qualified as an expert in the field of 

reproduction. (N.T. 01/27/2016 at pages 162 -176; Petitioner's 

Exhibit 5 of 01/27/2016) 

32. Ms. Stover's opinion was that M.G. could not have 

gotten pregnant in the manner she described with the insertion of 

the discarded condom into her vagina. (N.T. 01/27/2015 at page 

185) 

33. Ms. Stover's opinion is that M.G. became pregnant as a result of child sexual abuse. (N.T. 01/27/2015 at page 185) 

34. On or about November 9, 2015, genetic testing confirmed 

that the Appellant is the biological father of J.C. 

(Petitioner's Exhibit A attached to the Agency's Amended Petition 

for Custody filed November 24, 2016). 

35. At the hearing held on January 27, 2016, M.G. admitted 

that she had lied during the Children's Alliance interview on May 

26, 2015, when she stated that the Appellant is not the 

biological father of the Child. (N.T. 01/27/2016 at pages 8 -9) 

36. M.G. further went on to testify that on the night she 

had inseminated herself she had placed the used condom over her 

index and middle fingers and had then inserted it into her 

vagina. (N.T. 01/27/2016 at pages 31 -32) 

37. As of the December 3, 2015, hearing, M.G. had informed 

the Agency caseworker that she wanted no contact with her 

biological father, G.G. (N.T. 12/03/2015 at page 46) 

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38. M.G. gave J.C. the same name as the Appellant. (N.T. 

01/27/2016 at page 43) 

39. M.G. stated that she had decided to have a baby to make 

C.C. -R. happy because C.C. -R. could not have any more children. 

(N.T. 01/27/2016 at pages 46 and 58) 

40. On January 26, 2016, the Appellant was charged 

criminally as a result of the inappropriate sexual contact with 

M.G.2 (N.T. 01/27/2016 at page 101) 

41. On January 27, 2016, M.G. testified that she loves the 

Appellant and that she was upset that the Appellant was 

incarcerated. (N.T. 01/27/2016 at page 70) 

42. Robert B. Filer, M.D., was called as a witness on 

behalf of the Agency. (N.T. 04/20/2016 at page 37) 

4 43. Dr. Filer was qualified as an expert with regard to 

fertility and related endocrinology. (N.T. 04/20/2016 at page 

38) 

44. Dr. Filer offered his opinion that assuming a hypothetical factual setting which accepts as true the version of 

facts and conditions rendered by M.G. which is most likely to 

result in pregnancy, the best chance of getting pregnant under 

2 The Court takes judicial notice that Jamie (sic) Cruz -Rivera, 

d.o.b. 10/04/1978, was charged on January 26, 2016, with violations of 18 

Pa.C.S.A. § 3122.1 §§ B Statutory Sexual Assault: 11 Years Older (F1), 18 

Pa.C.S.A. § 6301 §§ (A) (1) (ii) Corruption of Minors - Defendant Age 18 or Above (F3), and 18 Pa.C.S.A. § 6318 §§ (A) (1) Unlawful Contact with Minor - Sexual Offenses (F3). See Docket Number: MJ- 02101 -CR- 0000028 -2016. 
such facts and conditions would be less than one percent. (N.T. 

4/20/2016 at page 51) 

45. The Court asked M.G. to tell the story of the fateful 

night that she got pregnant in reverse order, from the end to the 

beginning. (N.T. 04/20/2016 at pages 60 -61) 

46. M.G. was unable to relate any portion of any version of 

her story in reverse order. (N.T. 04/20/2016 at pages 61 -68). 

47. M.G. was unable to state a reason why she gave two 

distinct versions of how she applied the used and discarded 

condom to herself (those being the version in which the condom 

was "halfway open" and was placed over her index and middle 

fingers inside -out and then inserted it and the version where 

M.G. cut a hole in the tip of the condom, inserted it and 

squeezed out the contents). (N.T. 04/20/2016 at pages 68 -69) 

48. M.G. stated that the correct method of self - insemination she utilized was by turning the used condom inside 

out and inserting it in herself. (N.T. 04/20/2016 at page 69) 

49. By the time of the final hearing, April 20, 2016, 

Mother indicated she would be filing for divorce from 

Father /Stepfather. (N.T. 04/20/2016 at page 26) 

CONCLUSIONS OF LAW 

1. In respect to the case of M.G., the record contains 

clear and convincing evidence that M.G. is a victim of child 

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abuse as defined at 23 Pa. C.S.A. § 6303 and that the Appellant 

is the perpetrator of such child abuse upon M.G.3 

2. In respect to the case of J.C., Aggravated Circumstances 

as defined at 42 Pa. C.S.A. § 6302 were established by clear and 

convincing evidence with regard to the Appellant due to the fact 

that a child of the Appellant (specifically, M.G.) other than 

J.C. is the victim of sexual abuse perpetrated by the Appellant. 

DISCUSSION 

FINDINGS IN RESPECT TO CHILD ABUSE 

AND THE PERPETRATOR OF CHILD ABUSE 

Child abuse is defined in the Child Protective Services Law 

(the 23 Pa. C.S.A. § 6303 (b.1), in relevant part, as 

follows: 

Child abuse. -The term "child abuse" shall mean 

intentionally, knowingly or recklessly doing any of the 

following:... 

(4) Causing sexual abuse or exploitation of a child through any recent act... 

Judicial findings in respect to: (1) whether child abuse 

which supports a finding of dependency has occurred; and, (2) if 

child abuse has occurred, the identity of the perpetrator of such 

3 Due to the fact that M.G. had been in placement for a substantial 

period of time, a permanency review was conducted as an integrated part of the 

hearings. The Court issued a Permanency Review Order dated April 20, 2016, 

and filed April 26, 2016, in which the Court found that aggravated 

circumstances existed as to the Appellant. The Appellant did not raise any 

issue as to this finding in either of his appeals to the Superior Court. 

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abuse, are subject to a "clear and convincing evidence" standard 

of proof. 23 Pa. C.S.A. 6341 (c); In Re L.Z., 111 A.3d 1164 (Pa. 

2015). Clear and convincing evidence must be established to 

support a finding of Aggravated Circumstances. Clear and 

convincing evidence is testimony that is so "clear, direct, 

weighty and convincing as to enable the trier of fact to come to 

a clear conviction, without hesitance, of the truth of the 

precise facts in issue. In Re K.M., 53 A.3d 781 (Pa.Super. 

2012) . A further consideration is the presumption created under 23 

Pa.C.S.A. § 6381 (d), which reads, in relevant part, as follows: 

Evidence that a child has suffered child abuse of 

such a nature as would ordinarily not be sustained or 

exist except by reason of the acts...of the parent or 

other person responsible for the welfare of the child 

shall be prima facie evidence of child abuse by the 

parent or other person responsible for the welfare of 

the child. 

In the present case, it is a matter of scientific fact that 

the Appellant is the biological father of J.C. M.G.'s pregnancy 

with the Appellant's child, J.C., "would ordinarily not exist 

except by reason of" the Appellant's acts. 

There were no witnesses who testified as to the act which 

led to J.C.'s conception other than M.G. 

The Appellant offered no testimony to rebut the statutory 

presumption which arises from the fact that the child, M.G., 

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became pregnant by her much older stepfather, which circumstance 

by necessity falls within the concept of "sexual abuse ". 

M.G. offered numerous inconsistent stories in respect to the 

manner in which she became pregnant. Her stories were notable 

for an absence of much detail and also for inconsistencies in one 

or more critical details with each of her several iterations. 

Also of significance is that M.G. was unable to respond at all 

when the Court gave her an ample opportunity to tell the true 

story of what happened on the fateful night when she became 

pregnant but to do so by telling the story in a reverse order.' 

M.G.'s estrangement from her own biological father, G.G., 

was established through several sources. The Appellant had the 

opportunity to engage in a sexual relationship with M.G., in that 

he was responsible for supervising her while she was at home and 

C.C. -R. was at work. M.G. admitted her affection for the 

Appellant. She gave her child J.C. the same name as the 

Appellant. She acknowledged her personal distress caused by the 

Appellant's incarceration. Clearly, M.G. had motives to protect 

the Appellant. Each of these nuances are individually indicia of 

a potential absence of candor on M.G.'s part, or provide reasons 

4 The undersigned attended the seminar presented at the Pennsylvania 

Conference of State Trial Judges Mid -Annual meeting in February, 2016, 

entitled "Verum or Mendacium" presented by Prof. Dr. Aldert Vrij of the 

University of Portsmouth, Great Britain. Dr. Vrij is a recognized expert in 

the field of lie detection. One of the points he made is that liars tend to 

omit detail, particularly any detail which is subject to verification, from 

their stories. Dr. Vrij also suggested that many liars find it difficult to 

relate their stories in reverse order. 

-15- 
for same. Viewed cumulatively, these nuances point strongly to 

the conclusion that none of varying renditions which M.G. offered 

is credible. "The trial court is free to believe all, part, or 

none of the evidence presented and it is likewise free to make 

all credibility determinations and resolve conflicts in the 

evidence ". In re M.G., 855 A.2d 68, 73 -74 (Pa.Super. 2004) 

Once this Court has rejected the story that M.G. became 

pregnant by way of self -insemination, then the obvious manner in 

which she became pregnant is by way her engaging in sexual 

intercourse with the Appellant. 

The expert testimony of Robert B. Filer, M.D., was credible 

and compelling, and is supportive of the Court's ultimate 

conclusion regarding the manner that J.C.'s conception was 

achieved. Firstly, Dr. Filer's credentials as an expert in human 

reproduction are beyond reproach. His testimony established that 

there is an infinitesimal chance that M.G. could have been 

impregnated by inserting a used condom containing the Appellant's 

semen. 

The testimony of Julie Stover, R.N.P., while not as 

compelling as that of Dr. Filer (as her conclusion rests, at 

least in part, upon her best sense of the situation based upon 

her experience with child sexual abuse cases rather than upon the 

science of human reproduction) is none the less supportive of the 

-16- 
conclusion which this Court reached - that J.C. was conceived 

through direct sexual contact between the Appellant and M.G. 

In addition, there are the reports of physical contact 

between the Appellant and M.G. which are consistent with the 

existence of a sexual relationship between them. Standing alone, 

these reports would be insufficient proof of that relationship. 

However, in the context of the other cumulative evidence, they 

bolster the Court's conclusion that such a relationship did 

exist. 

Under the CPSL at 23 Pa.C.S.A. § 6303, the following is 

included, inter alia, within the definition of "sexual abuse or 

exploitation ": 

...(ii) Statutory sexual assault as defined in 18 Pa.C.S. § 3122.1;...and, 

...(xii) Unlawful contact with a minor as defined in 18 

Pa.C.S. § 6318. 

18 Pa.C.S. § 3122.1 (b) states that "[a] person commits a felony of the first degree when that person engages in sexual 

intercourse with a complainant under the age of 16 years and that 

person is 11 or more years older than the complainant and the 

complainant and the person are not married to each other." Each 

of the elements of this offense are present in the instant case. 

18 Pa.C.S. § 6318 (a) states, in relevant part, that: 

-17- 
"A person commits an offense if he is intentionally in 

contact with a minor...for the purpose of engaging in an activity 

prohibited under any of the following, and either the person 

initiating the contact or the person being contacted is within 

this Commonwealth: (1) Any of the offenses enumerated in Chapter 

31 (relating to sexual offenses)..." Again, each of the elements 

of this offense are present in the instant case. 

Even in a criminal matter where proof beyond a reasonable 

doubt is the evidentiary standard, it is well established that 

the standard may be satisfied where only circumstantial evidence 

is offered. "The Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable doubt by means of 

wholly circumstantial evidence." Commonwealth v. Andrulewicz, 

911 A.2d 162, 165 (Pa.Super. 2006) , citing Commonwealth v. 

DiStefano, 782 A.2d 574, 582 (Pa.Super 2004). For further 

exposition of the concept, the Court reviewed the Pennsylvania 

Suggested Standard Criminal Jury Instructions and found the 

following: 

Circumstantial evidence alone may be sufficient to 

prove the defendant's guilt. If there are several 

separate pieces of circumstantial evidence, it is not 

necessary that each piece standing alone separately 

convince you of the defendant's guilt beyond a reasonable doubt. Instead, before you may find the 

defendant guilty, all the pieces of circumstantial 

evidence, when considered together, must reasonably and 

naturally lead to the conclusion that the defendant is 

guilty and must convince you of the defendant's guilt 

beyond a reasonable doubt. In other words, you may 

find the defendant guilty based on circumstantial 

-18- 
evidence alone, but only if the total amount and 

quality of that evidence convince you of the 

defendant's guilt beyond a reasonable doubt. Pa. SSJI 

(Crim) 7.02A 4. 

In the present case, there is the direct scientific evidence 

that the Appellant is the biological father of J.C. There is Dr. 

Filer's expert opinion that it is highly unlikely conception 

could have occurred through any of the methods described by M.G. 

The balance of the evidence is circumstantial in nature. 

In reviewing the totality of the evidence against the highly 

stringent standard of proof beyond a reasonable doubt, this Court 

is satisfied that the evidence is sufficient to meet that test 

and is more than sufficient to far exceed that degree of proof 

necessary to meet the "clear and convincing evidence" standard 

which is applicable in this case.' 

FINDING OF AGGRAVATED CIRCUMSTANCES 

The Court found that "aggravated circumstances" had been 

proven as to the Appellant due to its finding that the Appellant 

had sexually abused M.G. 

The relevant definition of "aggravated circumstances" 

applicable to the instant matter is... "(2) ...another child of 

5 After the record was closed in these proceedings, according to the 

Agency's brief in the appeal, M.G. has admitted that she and the Appellant had 

a sexual relationship. The Answer To Statement Of Matters Complained Of On 

Appeal filed on behalf of C.C. -R. indicates the same. -19- 
the parent has been the victim of...sexual violence...by the 

parent ". 23 Pa. C.S.A. § 6302. (Irrelevant material omitted.) 

The Appellant is not the biological father of M.G., but he 

is her stepfather. The Superior Court has established that for 

the purpose of defining the term "parent" in the context of 

aggravated circumstances, the doctrine of in loco parentis may be 

appropriately applied. In the Interest of C.B. and A.L., 861 

A.2d 287 (Pa.Super. 2004). The Appellant stood in the 

relationship of a parent to M.G. by assuming the obligations 

incident to the parental relationship. In the case of J.C., M.G. 

is "another child of the parent" (the Appellant) who "has been 

the victim of sexual violence by the parent." 

Clear and convincing evidence must be established to support 

a finding of Aggravated Circumstances. 42 Pa.C.S.A. 8 6341 

(c.1). Again, "clear and convincing evidence" is testimony that 

is so "clear, direct, weighty and convincing as to enable the 

trier of fact to come to a clear conviction, without hesitance, 

of the truth of the precise facts in issue. In Re K.M., 53 A.3d 

781 (Pa.Super. 2012). 

The same evidence which supports the Court's findings in 

respect to child abuse more than amply supports its finding that 

aggravated circumstances exist in respect to the actions of the 

Appellant vis -à -vis M.G. The analysis of the evidence set forth 

in the first part of the discussion above (regarding the Court's 

-20- 
findings in respect to child abuse) is applicable in this 

instance as well. 

The Appellant may argue that it is improper for this Court 

to make a finding of aggravated circumstances in the context of 

an adjudication order where the subject child is found to not be 

dependent, as occurred here. It is axiomatic that the finding of 

dependency, or the lack thereof, must be based upon the facts and 

circumstances as they exist when a court makes its ruling on the 

issue. As of the date of the final hearing in this case (April 

20, 2016), the circumstances had evolved significantly from those 

which existed as of the time the Agency brought its petition. 

The Appellant had been incarcerated. C.C. -R. had indicated her 

intention to divorce the Appellant. J.C. had been in M.G.'s care 

since his birth, and there was every indication that he would be 

safe if he were to remain in her care. The Agency, while arguing 

that both M.G. and J.C. were dependent, was supportive of its 

retaining only legal custody of M.G., with her physical custody 

to be returned to C.C. -R. and with J.C. to remain with M.G. 

(N.T. 04/20/2016 at pages 75 -79) M.G.'s counsel argued 

persuasively that M.G. herself was a ready, willing and able 

parent (albeit with the supports in place for her in her mother 

C.C. -R.'s home). The Court found that, under such circumstances 

as existed as of the date of its determination, there was not 

clear and convincing evidence that J.C. was a dependent child and 

-21-- 
issued its Order so finding, but the Court also made its finding 

that clear and convincing evidence, as noted above, existed which 

established aggravated circumstances as to the Appellant. 

It may be argued that the Court's finding of aggravated 

circumstances is a nullity where there is no finding that a child 

is dependent. It may be further argued that without an ongoing 

case, a finding of aggravated circumstances accompanied by a finding that the Agency need not offer a plan for reunification 

serves no practical purpose. 

In the ordinary course of events, a court will address the 

issue of aggravated circumstances subsequently to making its 

finding that a child is dependent. See In the Interest of R.P., 

957 A.2d 1205 (Pa.Super. 2008). 

The Court has attempted to find appellate authority on the 

issue of whether a court may make a finding of aggravated 

circumstances where there is no finding in the same case that a child is dependent, but has been without success. 

The Court is aware of the provision in 42 Pa.C.S.A. § 6341 

(c.1) which provides that: 

If the county agency or the child's attorney 

alleges the existence of aggravated circumstances and 

the court determines that the child is dependent, the 

court shall also determine if aggravated circumstances 

exist. If the court finds from clear and convincing 

evidence that aggravated circumstances exist, the court 

shall determine whether or not reasonable efforts to 

prevent or eliminate the need for removing the child 

from the home or to preserve and reunify the family 

shall be made or continue to be made and schedule a -22- 
hearing as required in section 6351(e)(3) (relating to 

disposition of dependent child). (Emphasis supplied.) 

The legislature's choice of the word "shall" indicates that 

it is mandatory for a court to rule on the issue of whether 

aggravated circumstances exist where a child has been determined 

to be dependent and motion for the finding has been made. A 

finding of aggravated circumstances is a legal conclusion drawn 

by a court having jurisdiction and is based upon the facts as 

found by the court. The Juvenile Act defines what constitutes 

aggravated circumstances and states when a court is compelled to 

make a legal determination upon the issue. The Juvenile Act does 

not exclude the finding of aggravated circumstances by a court 

where, as in the instant case, the issue has been fully and 

fairly litigated and there is a factual basis proven by clear and 

convincing evidence which supports a finding of aggravated 

circumstances. Rather, a court should be permitted to make the 

finding where, as here, the court is not mandated to make the 

determination by the strict terms of the statute but the finding 

is nonetheless appropriate and in the interest of the subject 

child and of justice. 

The Court is highly mindful of its responsibility to enter 

an order of "disposition best suited to the protection and 

physical, mental and moral welfare of the child." 24 Pa.C.S.A. § 

6351 (a). Under the circumstances, the Court has concern that in 

the absence of a finding of aggravated circumstances, the 

-23- 
Appellant's chances of his eventually reuniting with J.C. will be 

enhanced. That eventuality would be contrary to the protection 

and physical, mental and moral welfare of J.C. A finding of 

aggravated circumstances carries with it collateral consequences 

which the Court believes are appropriate in this case and which 

the Appellant should not escape only because J.C. is now in a safe place with M.G. Those consequences may include, but are not 

limited to, forming an appropriate consideration for a court in 

the future should it be faced with the issue of whether to grant 

the Appellant a plan for reunification. The finding may also be 

a significant part of a court's consideration of the safety of a child in a child custody case where the Appellant is a party or 

is a household member of a party. See 23 Pa.C.S.A. § 5329.1. As 

such, there is ample legal basis and good reason to sustain this 

Court's finding of aggravated circumstances. 

-24- 
CONCLUSION 

The Appellant's appeals are without merit. The Order of 

Adjudication and Disposition -Child Dependent with regard to 

Monica Geib dated April 20, 2016, and the Order of Adjudication - Child not Dependent with regard to Jaime Cruz dated April 20, 

2016, should be affirmed. 

,. _. .. ... . .... 

i C?rtify this document to be filed 

in , ::he Lancaster County Office of 

the » ;eri` of the Courts. 

) % ``?., " ," CJ 7 7.72 ¡, -AL,..., .., / / L- 7JaJcμ.,Eryn P.CF4sÍCh 

Clerk of Courts 

Copies to: 

BY THE COURT: 

iliMalTarM Wi eich, Judge 

David J. Natan, Esquire, Counsel for Children and Youth Agency Gina M. Carnes, Esquire, Counsel for C.C. -R. 

Catharine I. Roland, Jr., Esquire, Counsel for G.G. 

JoAnne Murphy, Esquire, Guardian ad litem for M.G. 

Daniel S. Shertzer, Jr., Esquire, Counsel for M.G. 

Caprice Hicks Bunting, Esquire, Counsel for the Appellant 

Jeffrey S. Shank, Esquire, Guardian ad litem for J.C. 

-25-